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Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty

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Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty (Slip Opinion) Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty In establishing a mandatory waiting period for withdrawing from a treaty, section 1234(a) of the National Defense Authorization Act for Fiscal Year 2020 unconstitutionally interferes with the President’s exclusive authority to execute treaties and to conduct diplomacy. September 22, 2020 MEMORANDUM OPINION FOR THE LEGAL ADVISOR TO THE NATIONAL SECURITY COUNCIL The United States is a party to the Open Skies Treaty, which allows state parties to conduct unarmed surveillance flights over the territory of the other parties. Treaty on Open Skies, Mar. 24, 1992, reprinted in S. Treaty Doc. No. 102-37 (Aug. 12, 1992) (“OST”); 2 Pub. Papers of Pres. William J. Clinton app. A, at 2213 (Nov. 3, 1993). Article XV of the Treaty gives each party the right to withdraw after providing notice, at least six months in advance, to a Treaty depositary and to the other state parties. In section 1234(a) of the National Defense Authorization Act for Fiscal Year 2020 (“FY 2020 NDAA”), Congress sought to require the Executive Branch to notify four congressional committees, at least 120 days in advance of sending the notice, that withdrawal is in the best interests of the United States national security and that the other state parties to the Treaty have been consulted about the United States’ planned withdrawal. Pub. L. No. 116-92, § 1234(a), 133 Stat. 1198, 1648 (2019). On May 22, 2020, the Secretary of State and the Secretary of Defense jointly provided notice to congressional leadership of the President’s decision that the United States would withdraw from the Treaty. See Letter for Nancy Pelosi, Speaker of the House, U.S. House of Representa- tives, from Michael R. Pompeo, Secretary of State, and Mark T. Esper, Secretary of Defense (May 22, 2020) (“Notification Letter”); see also Michael R. Pompeo, U.S. Dep’t of State, Press Release, Press Statement on the Treaty on Open Skies (May 21, 2020), https://www.state.gov/on- the-treaty-on-open-skies/. Consistent with section 1234(a), the Secretaries confirmed that withdrawal was in the best interests of the United States national security and that the Department of State had consulted exten- sively with other state parties. But they further explained that the Presi- 1 44 Op. O.L.C. __ (Sept. 22, 2020) dent had directed that the notice of withdrawal be sent immediately, without waiting for the 120 days called for by section 1234(a). Notifica- tion Letter at 2. Before the President gave that direction, you asked whether section 1234(a)’s mandatory congressional-notice period is constitutional. We advised that the notice period unconstitutionally interferes with the Presi- dent’s exclusive authority to execute treaties and to conduct diplomacy, a necessary incident of which is the authority to execute a treaty’s termina- tion right. Congress may not intrude upon the President’s authority to speak as the voice of the United States in executing a treaty by imposing the notice-and-wait provision called for under section 1234(a). This memorandum memorializes the basis for that conclusion. I. President George H.W. Bush signed the Open Skies Treaty on behalf of the United States in Helsinki, Finland, on March 24, 1992, along with representatives of the Russian Federation and other nations. See Message to the Senate Transmitting the Treaty on Open Skies (Aug. 12, 1992), 2 Pub. Papers of Pres. George Bush 1345, 1345–46 (1992) (“OST Mes- sage”). The Treaty allows each state party to conduct a limited number of unarmed observation flights over the territory of other parties. See OST arts. I–IX. Data obtained from these flights may then be shared among the parties. See id. art. IX, § IV; see also id. art. X, ¶ 5 (allowing the Open Skies Consultative Commission to develop “arrangements for the sharing and availability of data”). The Treaty was intended, among other things, to “improve openness and transparency,” “to enhanc[e] security,” “to facilitate the monitoring of compliance with existing or future arms con- trol agreements,” and “to strengthen the capacity for conflict prevention and crisis management.” Id. pmbl. The idea for the Open Skies Treaty originated in the early years of the Cold War, but it did not enter into force until a good deal later. President Eisenhower first proposed the idea for a regime of mutual unarmed recon- naissance flights in 1955, as a confidence-building measure between the superpowers. But it was not until 1989, as the Cold War entered its last years, that President George H.W. Bush began negotiating a multilateral agreement for such a regime. See Treaty on Open Skies, S. Exec. Rep. No. 2 Congressionally Mandated Waiting Period for Submitting a Notice of Withdrawal 103-5, at 2 (1993). President Bush signed the agreement in 1992 and submitted it to the Senate for advice and consent. OST Message at 1345. In considering whether to recommend that the Senate provide its ad- vice and consent to ratification, the Senate Committee on Foreign Rela- tions observed that the Treaty “will be of marginal direct benefit to the United States” and that there was a “general consensus within the United States Government that the treaty will not provide any significant infor- mation gains to this nation.” S. Exec. Rep. No. 103-5, at 16. The Trea- ty’s original impetus had been “overtaken” in part by the advent of satellite technology, which offered better data-acquisition capabilities. See id. at 2–3. In addition, the Senate Armed Services Committee ex- pressed concern about “the cost-effective use of Department of Defense resources under the Treaty” and viewed the “overall cost-benefit to the U.S.” as “questionable.” Id. at 142–43, 15. Nonetheless, the Committee on Foreign Relations concluded that the Treaty was “not likely to jeop- ardize United States national security,” id. at 16, and the Senate consent- ed to the Treaty subject to two conditions (neither of which bears on withdrawal). See 139 Cong. Rec. 19,913 (1993). On November 2, 1993, President Clinton signed the instrument of ratification.1 The Treaty did not finally enter into force, however, until January 1, 2002, see Treaty Affairs Staff, Office of the Legal Adviser, U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2020 § 2, at 2, after the requisite number of nations had acceded to it, see OST art. XVII, ¶ 2. At present, 34 states, including the United States, are parties to the Treaty. The Open Skies Treaty is of unlimited duration. Id. art XV, ¶ 1. But it provides that a state party “shall have the right to withdraw from this Treaty,” and that a party intending to withdraw “shall provide notice of its decision to withdraw to either Depositary at least six months in advance of the date of its intended withdrawal and to all other States Parties.” Id. art. XV, ¶ 2. Should a state party provide such notice, the Treaty directs the two depositary governments (Canada and Hungary, see id. art. XVII) 1 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 1995: Hearings Before the Subcomm. on the Dep’ts of Commerce, Just. & State, the Judiciary & Related Agencies of the H. Comm. on Appropriations, 103d Cong. 207 (1994). 3 44 Op. O.L.C. __ (Sept. 22, 2020) to convene a conference of the state parties “to consider the effect of the withdrawal on this Treaty.” Id. art. XV, ¶ 3. In recent years, United States military officials expressed concerns that the Treaty’s implementation had undermined the national security of the United States. Some observed that Russia received a much greater ad- vantage than the United States from the overflight rights. 2 Others com- plained that Russia had regularly breached its obligations under the Treaty and thereby undermined its benefits.3 For these and other reasons, United States officials discussed the possibility of withdrawing. 4 2 See, e.g., Hearing to Consider the Nomination of General Joseph F. Dunford, Jr., USMC, for Reappointment to the Grade of General and Reappointment to Be Chairman of the Joint Chiefs of Staff Before the S. Comm. on Armed Servs., 115th Cong. 49 (2017) (“Dunford Hearing”) (statement of Gen. Dunford) (calling “compelling” the argument that “Russia gets more benefit from [OST] flights than does the United States”); Worldwide Threats: Hearing Before the H. Comm. on Armed Servs., 114th Cong. 13 (2015) (statement of Lt. Gen. Vincent R. Stewart, Dir., Def. Intelligence Agency) (“The Open Skies construct was designed for a different era. I am very con- cerned about how it’s applied today.”); Russian Arms Control Cheating: Violation of the INF Treaty and the Administration’s Responses One Year Later: Joint Hearing Before the Subcomm. on Strategic Forces of the H. Comm. on Armed Servs. & the Subcomm. on Terrorism, Nonproliferation & Trade of the H. Comm. on Foreign Affairs, H.A.S.C. No. 114-70, 114th Cong. 15 (2015) (“Russian Arms Control Hearing”) (ac- cording to the head of U.S. Strategic Command, the “treaty has become a critical com- ponent of Russia’s intelligence collection capability directed at the United States,” and Russian overflights create “vulnerabilities” for the United States); see also Senator Tom Cotton, The Open Skies Treaty Is Giving Russia Spying Capabilities. End It., Wash. Post (Dec. 10, 2019), https://www.washingtonpost.com/opinions/2019/12/10/open-skies- treaty-is-giving-russia-spying-capabilities-end-it/ (“[T]he Open Skies Treaty no longer serves to reduce tensions or build trust, if it ever did.
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